Colorado Supreme Court justices are very busy people, but if they want to save themselves time in the upcoming appeal involving Douglas County’s Choice Scholarship Program, here’s an idea: copy and paste a few paragraphs from last week’s unanimous high court ruling in Indiana upholding a statewide voucher system.

Like Colorado, Indiana’s constitution has a “Blaine amendment” that goes beyond the First Amendment in barring public aid to religious institutions. It includes the emphatic phrase, “No money shall be drawn from the treasury for the benefit of any religious or theological institution.”

Colorado’s Blaine language is more long-winded but equally clear. No “appropriation, or pay from any public fund or moneys whatever” may go to “support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever.”

Opponents of school choice in both states had been confident the Blaine provisions gave them the upper hand. What they didn’t count on were judges adopting the entirely reasonable position — modeled after a ruling by the U.S. Supreme Court — that if education money flows to families, as it does in Douglas County and Indiana, it is a direct benefit to them and of only incidental benefit to the school a child attends.

But let the Indiana high court explain. “We first find it inconceivable,” those justices said, “that the framers and ratifiers intended to expansively prohibit any and all government expenditures from which a religious or theological institution derives a benefit — for example, fire and police protection, municipal water and sewage service, sidewalks and streets, and the like.

“Certainly religious or theological institutions may derive relatively substantial benefits from such municipal services. But the primary beneficiary is the public, both the public affiliated with the religious or theological institution, and the general public. …

“The direct beneficiaries under the voucher program are the families of eligible students … The voucher program does not directly fund religious activities because no funds may be dispersed to any program-eligible school without the private, independent selection by the parents … .”

A panel of the Colorado Court of Appeals applied similar logic earlier this year when it reversed a lower court’s ruling that declared Dougco’s choice program unconstitutional.

That program, two of three judges agreed, is permitted because it “is intended to benefit students and their parents, and any benefit to the participating schools is incidental.” The program is “neutral toward religion, and funds make their way to private schools with religious affiliation by means of personal choices of students’ parents.”

To be sure, the legal challenge to Dougco vouchers is based on a number of issues, but none excites opponents quite like the possibility that some students will attend religious schools. Thus their willingness to rely on the Blaine language in the first place, which has a rather unfortunate history of being steeped in 19th century anti-Catholic bigotry.

Judge Michael Martinez airily discounted those origins in his 2011 ruling against Douglas County. And Judge Steve Bernard, in his dissent from the recent appeals court opinion, spent more than 25 pages exploring the religous politics of that era before coming perilously close to blaming Bishop Joseph Machebeuf for provoking the Blaine language.

Yet as the court majority noted, the origins of the Blaine provision aren’t even relevant if the scholarship program doesn’t violate that mandate. And as these two recent court decisions persuasively demonstrate, there’s no compelling reason to insist that it does.

Vincent Carroll has been writing commentary on public policy and politics in Colorado for 35 years, after several reporting and editing stints in other states. He was editorial page editor at the Rocky Mountain News for many years until that newspaper’s demise in 2009, when he moved to The Denver Post. When Carroll retired from full-time journalism in 2016, he was editorial page editor of The Post, too.

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